Saturday, January 30, 2010

In addition to justifying a principle of political obligation with a rational moral principle of reciprocity in which we have a duty to treat others as equals, Hobbes provides us with a moral argument for the de jure authority of a commonwealth committed to the provision of security and protection. The third law of nature being the (natural) duty to keep covenants, our acceptance of this provision amounts to a tacit covenant to obey the sovereign authority, and "if one has (tacitly) covenanted to obey the political authority of the commonwealth, than one has obligation to do so, since an obligation is just what one owes to another by covenant [elsewhere Lloyd explains Hobbes's distinction between a 'duty' and an 'obligation,' for the latter are by nature self-imposed, while natural duties are not]." The general argument is reminiscent of an earlier and similar one made by the personified Laws of Athens in Plato's Crito, at least inasmuch as the Laws remind Socrates that while he was always free to leave the city of his birth and upbringing, he remained within its borders, a beneficiary of the city's protection and promotion of "commodious living," specifically, Socrates is said to have been indebted to Athens for his life and education (I think the best analysis of the Crito remains Richard Kraut's Socrates and the State, 1984).

Apart from the failure of a state to live up to its raison d’être, the one categorical exemption to political obedience permits us to refuse obedience in those instances where we would be required to violate our duties to God. Here, once again, Hobbes is acknowledging the presence and power of transcendent interests which may be, and frequently are, pursued by people "at the expense not only of their material well-being, but even of their self-preservation." Hobbes perforce must speak to those with religious interests if he is to supply as many individuals as possible with a sufficient reason to adhere to his principle of political obligation. This was dictated, Lloyd explains, by Hobbes's reasonable

recognition that effective social order depends on compliance with the laws made by the political authority—that it depends on obedience of subjects—and that compliance is most effectively obtained when people can be persuaded that they have what they can see, in their own terms, as a sufficient reason for compliance.

Political authority cannot carry out its requisite functions (e.g., legislation, adjudication, taxation, and punishment) without, in the main, the uncoerced cooperation of the commonwealth's subjects. In today's terms, and in the spirit of Lon Fuller, we would say that the binding force of law must be something other than the fear of sanctions, indeed, there must be some sense, however inchoate from the perspective of philosophy or trivialized from the vantage point of legal positivism (as when Oliver Wendell Holmes mocked the idea that law is a 'brooding omnipresence in the sky'), that the law or legal system is morally legitimate. A reluctance to acknowledge the need for moral legitimacy may stem from what Nigel Simmonds, in Law as a Moral Idea (2007), has described as the difficulty we have in understanding the very nature of law, for "on the face of things, law seems to possess characteristics that cannot be combined within a single entity: law is an established social institution, but also a guiding ideal for such institutions, an apparatus of organized force, but also the antithesis of force; a product of authority, but also the source of any such authority." Be that as it may, the necessity of law's moral legitimacy is consistent with and no doubt connected to what Simmonds calls our "pre-theoretical outlook" (we might dignify this 'aspirational view of law embodied in our settled beliefs' by calling it a 'folk theory') which includes "the idea that governance by law is a lofty moral aspiration," a view Simmond's attempts to defend in his Kantian-like (or Platonic) argument that "law is in fact an intrinsically moral idea" or, put differently, "exhibits conceptually necessary connections with morality" (as Simmonds further notes, 'a demonstration that observance of the rule of law may at times, and to some extent, be serviceable for evil goals does nothing to negate law's status as an intrinsically moral ideal'). A failure to acknowledge or appreciate this connection leaves us with a largely instrumentalist conception of law (for an examination of the deleterious consequences of such an impoverished conception, see Brian Tamanaha's Law as Means to an End: Threat to the Rule of Law, 2006). And where does Hobbes's understanding of the nature of law fall out here? Well, for now we'll simply adopt a dogmatic tone and quote Lloyd's impeccable conclusion that "for Hobbes there can be no...deep separation of law and morals as marks the later positivist position." Hobbes well understood that compliance with the requirements of the rule of law is evidence of a commitment to maintain an intrinsically valuable form of moral association as incarnated in the state and enshrined in its rule of law. Much like Lon Fuller whom he cites in support, in Crimes Against Humanity: A Normative Account (2005), Larry May wants to carve out a morally "minimalist" space between legal positvism and a "robust" natural law theory, a space that forms the backdrop for his more than plausible contention that

Moral legitimacy is crucial for any type of law since the law's effectiveness is so closely linked with a person's sense that the law is legitimate and the corresponding sense of obligation that a person feels. Without this sense of the binding effect of the law, there is nothing of moral importance that motivates people to obey the law in the first place [we might imagine the fear of sanctions playing a default role for those failing to properly internalize this binding effect and its corresponding obligatoriness]. Law's effectiveness is dependent on the moral legitimacy of the law.

This would appear to be compatible with, if not identical to, what Hobbes believed, suggesting he might have readily endorsed the remainder of May's argument, which claims that

it makes prudential good sense to link wide-scale acceptance to normative justification. For law to be effective, there must be such acceptance, but the acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that law must display to be legitimate. This is what I am calling the 'moral legitimacy' of the law. The morality of law does not need to be robust for law to be legitimate. Here there is a set of moral principles, recognized in virtually every legal system, that makes a law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair.

If political authority hopes to secure general compliance from its subjects, it cannot simply rely on the threat of force, claimed Hobbes,

for the simple reason that in order for obedience to be reliably attainable by means of threat of force, it must be true that fear of death, wounds, or imprisonment (fear of the means of coercion available to political authority) must be the strongest motivating passion. But the existence of transcendent interests shows we cannot count on this passion (or, we might say, this interest in avoiding personal harm) to override all other passions and interests. More generally, the fear of personal harm (either 'artificially inflicted,' as in the case of punishment by the sovereign power, or 'naturally' consequent to the dissolution of any protective power, which disobedience might bring about) may not be sufficient to motivate people to obey their extant political authority, because that obedience may frustrate their realization of others of their interests (in, for instance, fulfilling their duties to God and to each other, securing the good of their loved ones, and so on), interests for the satisfaction of which they are willing to risk personal harm.Hobbes therefore proceeds to proffer two new sorts of reason for fealty to sovereign political authority that speak to specifically religious types of transcendent interest; one from religious duty, and the other from an interest in salvation; here we'll speak only to the first of these transcendent (religious) interests. And because for Hobbes "the laws of morality—the laws of nature—are identical to the laws of God discernible by unaided natural reason," "a demonstration that his principle of political obligation is compatible with the realization of one's interest in fulfilling one's duty to God, will automatically show that the principle is compatible with one's interest in fulfilling one's moral duties." While we can't here wholly recapitulate Hobbes's methodical redescription of religious duty as a transcendent interest, a critical component of this process involves recognizing that, in the end, so to speak, "what we believe must be a function of whom we believe," if only because, for example, "the Scriptures do not obviously yield a single, determinate body of doctrine," and religious truth is in no way contingent upon the idiosyncracies of motley private judgment. At least this is the case for any specific religious beliefs outside of, or more specific than that which we can come to know of our natural duties from the laws of nature:

The laws of God discoverable by unaided natural reason are just the laws of nature, considered as commands from a deity who exists, who has given laws and rules of conduct, and who offers rewards and punishments. In his natural kingdom, God governs those who acknowledge his providence by the dictates of 'right reason,' these laws of God, which concern the natural duties of one man to another. These duties...may be 'contracted into one easie sum, intelligible even to the meanest capacity, and that is, "Do not that to another, which thou wouldest not have done to thy selfe."' This is all that natural reason tells us about our duties to God in the treatment of one another, and everyone who has use of natural reason will agree about this.

Again, bereft here of details, Hobbes argues that differences involving our duties to God with respect to specific modes of worship and other forms of religious praxis cannot by their very nature (that is, properly understood by the means of natural reason), conflict with the commands of political authority, for on close examination we discover that

...God demands no particular sort of worship such that if the political authority prohibited it, we would be duty-bound to disobey him. There are no grounds in natural reason for preferring some other religious practices to any which the political authority may command us to observe.

What is most important in these matters is the indubitable fact that

We can know that we have a duty to endeavor to obey the laws of God (which command justice, mercy, humility, in sum not doing to others as we wouldn't be done to), and we can know something about 'the honour naturally due to our divine sovereign,' namely, that we should offer prayers, thanks, public worship, considerate speech, and obedience to God's laws. This is all our natural reason tells us about our duties to God. In particular, it doesn't specify determinate ceremonies, gestures, utterances, or postures as required to fulfill our duties to God. Natural reason can't, for example, tell us which prayer book to use, whether to pray facing the east, standing or kneeling, in Latin or in English, with pomp and circumstance or Spartan simplicity. What our natural reason suggests is that it doesn't matter which of these we use in our worship because whichever words and actions we intend to convey honor, do convey honor. Thus we have no natural reason not to worship as the political authority commands us to.

Hobbes displays an almost mystical attitude here (after all, whatever behavior we exhibit to the outside world, only God has knowledge of what is in our hearts and minds, that is, of our true intentions and motivations) toward the myriad modes of ('external') religious praxis in an attempt to negate the denominational expression of what Freud termed the "narcissism of little differences." Furthermore, "although natural reason cannot give us the whole truth about our duties to God, Hobbes insists that what it does tell us is true, and nothing further that revelation or prophecy [both being outside the province of unaided natural reason] might tell us about our duties to God can contradict what we have learned by natural reason." One can only admire the audacious and consistent quality of Hobbes's argument, even if we suspect not a few of his readers would have found it scandalous, or at least far from persuasive.

As part of the struggle to counter the insidious and socially disruptive effects that invariably follow widespread and recalcitrant misconconceptions of what our true moral and religious interests are, Hobbes believed we could shape socialization and educational processes so as to cultivate a correct conception of the rational kernel of these interests, thereby contributing to their proper satisfaction and directly facilitating a stable, enduring, and peaceful social order. Such a moral education enables us to learn the correct exercise of reason and thus attain an awareness of the due scope, hence limits, of private judgment, including an ability to harness our passions toward the end of social harmony and peace. The uninhibited exercise of passions in conjunction with uncircumscribed private judgment is responsible for the sorts of social strife and collective violence we have every reason to avoid, and so we are motivated to find sufficient reason(s) to agree to surrender our right of "absolute" self-governance and locate "absolute" political authority in a sovereign body:

[U]ndivided sovereignty is required to produce, through education, private judgment, it is a necessary condition of stable social order. The most important function of unified authority is to produce unanimity in opinion or uniformity in judgment.... Divided authority, which both produces and expresses a division in the opinions and judgments of supporters, entails division of power. Because what one believes is a function of whom one believes, multiple authorities will produce multiple judgments [an analogous contemporary exemplification being the battle of experts in the courtroom]; and differences in judgment are then expressed by allegiance to different authorities [an analogous contemporary exemplification found in the Islamic world]. Thus the power of a ruler is simply the by-product of his authority, which both reflects and conditions consensus in judgment.Hobbes has provided his readers with a plethora of reasons for political obedience (owing to the variety of transcendental and other interests): from prudence, from natural moral duties, and from Christian duty. The sovereign authority for its part acts in keeping with the proper fulfillment of its subjects' interests, and thus on behalf of their individual and collective welfare and well-being or common good in a manner consonant as well with their natural moral duties. Hobbes rightly concluded that as long as our private appetites and aversions serve as the standard of good and evil, as the criteria for right and wrong, we will be consigned to a miserable state of nature in which peace is but a distant hope or dream, indeed, "Government by individual appetite—private judgment of good and evil—is the defining character of the state of nature."

Contrary to what most have assumed or asserted, Lloyd helps us to see that Hobbes was not driven by an overweening hostility to or "rational" distaste for religion as such, for he "believed in the truth of the basic doctrines of the Judeo-Christian tradition," as well as in the natural law moral philosophy bequeathed in part by that tradition. Not unlike its fundamental significance in natural theology, Hobbes was convinced of the indispensable role of the God-given faculty of reason on behalf of true religious faith, belief and praxis, all of which should exemplify the core moral principles attained by natural reason (i.e., the (moral) laws of nature) the foremost being expressed in the reciprocity theorem and the Golden Rule. Given the presuppositions and premises of Hobbes's argument, it is hard not to sympathize if not identify with his view that religion is not "inherently, or necessarily, subversive of order," but it is patently and dangerously no less disruptive of civil order and peace when "not authoritatively regulated by the state...." Some of his presuppositions and assumptions were quickened in the crucible of experience:

From where Hobbes stood, experience, both the personal experience of Hobbes's contemporaries on the Continent, and the historical experience of Christians, particularly of the wars of religion—taught quite clearly that Christians had difficulty maintaining peace in the face of religious differences, and so any expectation of toleration without contention, would be unwarrantedly optimistic. Lloyd has meticulously described the many facets of Hobbes's ingenious and methodical rationalization of religious belief and praxis, as well as his redescription of prudential and transcendental interests generally, thereby precluding the possible grounds individuals might otherwise have had for refusing to renounce their (heretofore 'absolute') right to private judgment or, as citizens, justifiably disobeying sovereign authority. It goes without saying that the values and principles that make for Liberal sensibility clash with predominant features of Hobbes's absolutism, which we rightly judge repugnant and unacceptable. Nevertheless, and with Professor Lloyd, we might readily concede that Hobbes's "absolutism follows by a valid argument from premises that are by no means obviously false, absurd, unreasonable, or implausible."

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